B-113961, NOV. 2, 1956

B-113961, NOV. 2, 1956

TO MR. GEORGE W. WEST, JR.:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 19, 1956, WRITTEN ON YOUR BEHALF BY JOHNSON, HATCHER AND MEYERSON, ATTORNEYS AT LAW, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR PER DIEM DURING THE PERIODS MAY 1 TO JUNE 7 AND JUNE 10 TO 16, 1952, ON THE BASIS OF THE DECISION IN YOUR FAVOR BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DISTRICT, IN THE CASE OF UNITED STATES V. GEORGE W. WEST, JR., NO. 5181 C.A., RENDERED JUNE 20, 1956. THAT DECISION CONSIDERED THE CLAIM OF THE UNITED STATES AGAINST YOU FOR RECOVERY OF ERRONEOUS PAYMENTS OF PER DIEM AND IT APPEARS THAT ON THE EVIDENCE PRESENTED ON BEHALF OF THE GOVERNMENT THE PLAINTIFF WAS UNABLE TO SUSTAIN ITS CONTENTION THAT MESSING FACILITIES WERE AVAILABLE. THAT IS TO SAY, THE WEIGHT OF THE EVIDENCE NECESSARY TO SUSTAIN THE BURDEN OF PROOF IMPOSED UPON THE GOVERNMENT IN ORDER TO SUPPORT ITS CLAIM FOR RECOVERY OF OVERPAYMENTS, WAS HELD TO BE INADEQUATE.

AS IN YOUR PRESENT CLAIM, THE QUESTION AT ISSUE IN THE COURT CASE RELATED TO THE AVAILABILITY OF A GOVERNMENT MESS AT KELLY AIR FORCE BASE, TEXAS, DURING THE PERIOD OF YOUR TEMPORARY DUTY AT THAT PLACE IN 1952. THE CONCLUSION REACHED IN OUR DECISION TO YOU OF JUNE 17, 1953, THAT SUCH MESS WAS AVAILABLE, WAS BASED ON INFORMATION FURNISHED AT OR NEAR THE PERIOD INVOLVED BY DIFFERENT OFFICERS WHO WERE PERSONALLY ACQUAINTED WITH MOST OR ALL OF THE ACTUAL FACTS AS TO THE MESSING SITUATION WHICH EXISTED AT KELLY AIR FORCE BASE AT THAT TIME, INCLUDING THE USE WHICH WAS MADE OF THE MESSING EQUIPMENT WHICH WAS TAKEN BY YOUR ORGANIZATION TO THAT PLACE. AFTER YOU QUESTIONED THE ACCURACY OF SUCH INFORMATION, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, WAS REQUESTED TO SECURE A REPORT FROM KELLY AIR FORCE BASE AS TO THIS MATTER AND THE COMMANDER, SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, REPORTED BY TELEGRAM OF AUGUST 31, 1954, THAT GOVERNMENT MESSING FACILITIES WERE AVAILABLE DURING THE PERIOD INVOLVED. INFORMATION RECENTLY RECEIVED HERE REVOLVING AROUND THE SAN ANTONIO AIR MATERIEL AREA FOR THE PERIOD JANUARY TO JUNE 1952, AFFIRMS THE FACT THAT A FIELD RATION MESS WAS ADDED TO THE OFFICERS' OPEN MESS (OFFICERS' CLUB) FACILITIES. A GENERAL INSPECTION REPORT OF THE OFFICERS' OPEN MESS DATED JUNE 16, 1952, SHOWS AMONG OTHER THINGS, THAT THE FIELD RATION MESS IN THE OFFICERS' OPEN MESS HAD AN AVERAGE DAILY ATTENDANCE OF APPROXIMATELY 300 PERSONS DURING THE TIME YOU SERVED AT KELLY AIR FORCE BASE. THE RECORD INCLUDES A CERTIFICATION BY MAJOR DWIGHT H. GATES, USAF, THAT HE HAS BEEN ASSIGNED TO KELLY AIR FORCE BASE SINCE DECEMBER 17, 1951, AND THAT AN OFFICER'S FIELD RATION MESS WAS IN OPERATION AND AVAILABLE FOR OFFICER PERSONNEL AT THAT PLACE FROM FEBRUARY 1952.

NONE OF THE FOREGOING INFORMATION APPEARS TO HAVE BEEN SUBMITTED TO, OR IF PRESENTED THERE IS NO EVIDENCE THAT THE SAME WAS CONSIDERED BY, THE COURT IN REACHING ITS CONCLUSION THAT GOVERNMENT MESSING FACILITIES WERE NOT AVAILABLE. APPARENTLY THE ONLY EVIDENCE SUBMITTED ON BEHALF OF THE GOVERNMENT WAS A DEPOSITION OF THE ASSISTANT CHIEF OF THE SERVICE BRANCH WITH ADMINISTRATIVE JURISDICTION OVER VARIOUS NON APPROPRIATED FUND ACTIVITIES AT KELLY AIR FORCE BASE, A CIVILIAN EMPLOYEE OF THE GOVERNMENT. THE QUESTION WHETHER HIS TESTIMONY WAS FURNISHED ON THE BASIS OF PERSONAL KNOWLEDGE OF THE ACTUAL FACTS WHICH EXISTED IN 1952, IS NOT SHOWN. AS YOU WERE ADVISED IN OUR DECISION OF JULY 17, 1953, THE ACCOUNTING OFFICERS OF THE GOVERNMENT ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN THE ABSENCE OF CONVINCING EVIDENCE TO THE CONTRARY.

WHILE THE DECISION OF A COURT OF COMPETENT JURISDICTION ON A QUESTION IDENTICAL WITH ONE INVOLVED IN A CLAIM BEING CONSIDERED BY THIS OFFICE IS ENTITLED TO MOST RESPECTFUL CONSIDERATION HERE, ESPECIALLY WHERE THE RECORD IS FREE OF CONTROVERSIAL ISSUES, THE COURT'S DECISION IN THE INSTANT CASE FURNISHES NO SUBSTANTIAL BASIS FOR A CONCLUSION THAT THE FACTS RESPECTING YOUR PRESENT CLAIM MEET THE BURDEN OF PROOF IMPOSED UPON A CLAIMANT AFFIRMATIVELY TO OVERCOME THE CONTEMPORANEOUS RECORD EXISTING HERE AS TO THE AVAILABILITY OF MESSING FACILITIES. ACTUALLY, OF COURSE, WE ARE STRONGLY OF THE OPINION THAT HAD THE PLAINTIFF IN THE COURT CONTROVERSY BEEN SUCCESSFUL IN AFFIRMING, BY ORAL TESTIMONY OR BY PROPER DEPOSITION THE EXISTING EVIDENCE AS TO THE AVAILABILITY OF MESSING FACILITIES FOR OFFICERS IN YOUR SITUATION, THE COURT NECESSARILY WOULD HAVE BEEN REQUIRED UNDER THE LAW AND REGULATIONS TO SUSTAIN THE GOVERNMENT'S POSITION AS TO YOUR INDEBTEDNESS INCIDENT TO THE ERRONEOUS PAYMENTS MADE TO YOU OF THE PER DIEM ALLOWANCES. IN THE CIRCUMSTANCES DISCLOSED, THE DISTRICT COURT'S DECISION OF JUNE 20, 1956, DOES NOT FURNISH A SUFFICIENT BASIS TO CONCLUDE THAT A GOVERNMENT MESS WAS NOT AVAILABLE TO YOU AT KELLY AIR FORCE BASE AND HENCE DOES NOT WARRANT PAYMENT OF YOUR CLAIM.